Doris Ostwald et al., appellees.
Wayne Harold Beck, Appellant.
Declaratory Judgments. An action for
declaratory judgment is sui generis; whether such action is
to be treated as one at law or one in equity is to be
determined by the nature of the dispute.
Easements: Equity. An adjudication of rights
with respect to an easement is an equitable action.
Declaratory Judgments: Equity: Appeal and
Error. In reviewing an equity action for a
declaratory judgment, an appellate court decides factual
issues de novo on the record and reaches conclusions
independent of the trial court. But when credible evidence is
in conflict on material issues of fact, the court may
consider and give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
Injunction: Equity: Appeal and Error. An
action for injunction sounds in equity. On appeal from an
equity action, an appellate court tries factual questions de
novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the
conclusion reached by the trial court.
Injunction: Motions to Vacate. When the
circumstances and situation of the parties have changed so
that it would be just and equitable to vacate or modify a
permanent injunction, the court which granted the injunction
may vacate or modify it upon motion.
Injunction: Proof. The burden is on the
party seeking modification of a permanent injunction to show
a change in circumstance or situation sufficient to warrant
Easements: Abandonment: Intent: Proof. The
fact that an easement holder finds a more convenient
alternative route instead of using the easement does not
deprive the easement holder of the easement that [27 Neb.App.
764] remains for the holder's use and enjoyment whenever
the holder has occasion to use the right.
from the District Court for Dodge County: Geoffrey C. Hall,
Matthew M. Munderloh, of Johnson & Mock, PC, L.L.O., for
E. Johnson and Paul A. Lembrick, of Bruning Law Group, for
Chief Judge, and Pirtle and Bishop, Judges.
Harold Beck appeals from an order of the district court for
Dodge County which declared that Wayne's property
remained subject to an easement established in 1977 and which
enjoined Wayne from interfering with the use and enjoyment of
the easement by Doris Ostwald (Doris), Vernon Vodvarka, and
Becky Vodvarka (collectively appellees). Based on the reasons
that follow, we affirm as modified.
1975, Doris has owned a 40-acre tract of land (the Ostwald
40) used for farming and located in Dodge County, Nebraska.
The location of the Ostwald 40 is described as the
"Northwest quarter of the Northeast quarter
(NW1/4NE1/4), Section 13, Township 20 North, Range 5, East of
the 6th P.M." Vernon ...